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Friday, August 28, 2009

Women in Malaysia Should Thank God for Shariah Law in Malaysia

Much ado about the Kartika case, but did u know that the Shariah system has helped Malaysian Muslim women a lot throughout history?

Why do I say this? Because when the British came to Malaysia, they brought with them the British Common Law.

The original British Common Law prevents inheritance from being awarded to women. In other words, the British Common Law does not allow women to accept inheritance from their deceased parents or relatives.

According to an article by Noah Feldman:

“As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.”



But, since probate (or anything related to inheritance) are subjects under the Shariah laws, this part of the British Common Law was never applied to Muslim women in Malaysia.

So, Muslim women in Malaysia was saved from the injustice that is contained within the British Common Law. And such ruling still exists in the British jurisprudence, although not invoked by British judges anymore.

In fact, the British was forced to concede and went ahead to enact several Shariah enactments such as the ones stated in the Selangor shariah court website.

For instance:

“Sejarah penubuhan mahkamah syariah di negeri Selangor Darul Ehsan pula telah wujud dalam kurun ke-17.

Undang-undang Mencegah Berzina Tahun 1894 (Prevenatation of Adultry Regulation 1894) adalah undang-undang pertama yang dikanunkan di negeri Selangor. Diluluskan oleh Majlis Mesyuarat Negeri Selangor pada 26hb September 1894…”


And:

“Pada tahun 1900 pula, Majlis Mesyuarat Negeri telah meluluskan Undang-undang Pendaftaran Nikah Kahwin dan Cerai Orang-Orang Islam 1900 (Muhammadan Marriage and Divorce Registration Enactment 1900) iaitu undang-undang berhubung dengan nikah kahwin dan cerai orang-orang Islam di negeri Selangor.”



These are just instances where the British had to give in and allow Shariah to be practiced alongside the British Common Law.

So Malaysian women must thank the Shariah system, for it prevented Malaysian women from being thrown into the depth of poverty by the British intolerant Common Law

Tulang Besi

27 comments:

Wong Ka Wai said...

British Common law and Malaysian civil law are based on the needs of the current time and can be changed/amended from time to time.

On the other hand, laws under Shariah system are based on ancient collection of Islamic teaching which I believe will not change even for next 2000 years because these are the principles of their religion.

PS: Minuman herba (resipi lengkap and percuma) bagi mencegah selesema A (H1N1). Sila layari http://bukakedaionline.wordpress.com/2009/08/27/minuman-herba-bagi-mencegah-selesema-a-h1n1/

Anonymous said...

Hi MV,

Just want a bit of clarification here. It is true that a husband who allows his wife to prostitute herself for income sake is only liable for MYR4K fine and 6 whip lash under the Syariah Law? It would be great if you could clarify the ignoramus me.

Also, is Hassan Ali trying to destabilize Pakatan in Selangor? He needs to understand that not all Malay Muslims are the same. No one size fits all. Just because something can be done in Kelantan does not mean it can be done in Selangor. And besides why is he harping on trivial issue like arak when there are more important issue like corruption and eradicating poverty for all races? All Muslims know they should not consume arak. Let them decide. Why start policing? Lead by example. Look at Tuan Guru Nik Aziz. I would listen to his arguments because it sounds more sensible and diplomatic compare to the nonsense that is spewing out from Hassan Ali. His point might be right but the cara is wrong. TGNA doesn't shove it down your throat. When TGNA talks he doesn't say it for the sake of saying it just to get political mileage. He says because he is concern.

Please tell HAssan Ali, he is getting too big headed. Again remember, Malay Muslims cannot be lump together as all the same. With the way HAssan Ali is going, you can kiss Selangor goodbye. We voted PAS not for moral policing, we voted PAS because you guys seems more transparent, not corruptible, honest and not racist.

Economy wise it is not feasible either. So what is going to happen to those people that are affected by his arak policies? With mouths to feed at home? Unemployment? Never think of that? How are you going to get back that lost of income? I don't know, maybe he and PAS can provide money and shelter for those poor folks. Again, where you get the money.

Nothing is clear cut. Jangan tunjuk kebodohan. Lose respect sahaja. By the way, Michael Learns to Rock are a bunch of blokes singing sappy love songs. Not rock songs. Understand English but not comprehension? PAS Youth's Tantawi just reveal his stupidity. Again, do not lump all Malays together as the same.

Anonymous said...

yes, thanks to shariah law, they will get whipped too

Anonymous said...

yes whip these muslim women who dont follow the true teachings of Islam....

Lucky we are men.......

Tulang Besi said...

British Common law and Malaysian civil law are based on the needs of the current time and can be changed/amended from time to time..

Actually that's not true. The laws in Britian states that there is no introspective. Meaning to say, any laws that was passed in Britain cannot be cancelled and will remain a law forever.

So, that would mean the law of chopping hands for thieves is still a law in Britain.

and so does the law on woman inheritance.

Tulang Besi said...

Anonymous Anonymous said...

Hi MV,

Just want a bit of clarification here. It is true that a husband who allows his wife to prostitute herself for income sake is only liable for MYR4K fine and 6 whip lash under the Syariah Law? It would be great if you could clarify the ignoramus me.
.

No it's not. The husband will be dealt with but under Taazeer.

Tulang Besi said...

yes whip these muslim women who dont follow the true teachings of Islam....

Lucky we are men.......
.

Funny thing, men gets whipped too under the same laws, which is genderless.

But, men don't get inheritence.

Tulang Besi said...


On the other hand, laws under Shariah system are based on ancient collection of Islamic teaching which I believe will not change even for next 2000 years because these are the principles of their religion.
.

True, and 1400 years of precedeence.

Plus, there's ijtihad. So, that explains why the Shariah can last 1400 years and is still in practice even as we speak.

michael said...

Dear Tukang Besi.

I think you missed out a very important point which is being pointed out by your readers.

For Non-Muslims, under the amended Distribution Act 1958 (with effect on 30.8.1997) women and girl-children are entitled to inherit equally in the property of their relatives who die without a Will. Notice that this has been changed eons ago when only male heirs can claim inheritance.

However, in the case of the Syariah, what had been decreed fourteen centuries ago is still being practised today without alteration because who is to change what is decreed by man to be God's law ?
That is why women are still being canned in Islamic jurisprudence even at this age.

Perhaps the Muslim faith is still awaiting their reformation/enlightenment which missed them 600 years ago. As the gap between Jesus and Prophet Mohammed is also 600 years, maybe it's about time.

Anonymous said...

Dear Tulang Besi,

I think on this occassion you have mislead your readers. The common law system is not what you say it is. The current inheritance laws in Malaysia (which were derived from the british laws and subsequently modified) does not distinguish male and female beneficiaries. Everyone is equal and has an equal share. In fact the wife gets the largest share even before the children and male members outside the immediate family are excluded unless specifically provided in the will.

As I understand it, Shariah laws do make a distinction: the male members of a family tend to benefit more from inheritance than a female member, supposedly on the belief that a male member is better equipped to lead.

This is why many wealthy muslims in Malaysia make it a point to transfer assets prior to their wives and daughters prior to their death.

What you have stated may have been a situation where the Brits (when ruling colonial Malaya) started to pander to the wishes of the sultans, religious elders and so on.

I will limit my comments to this. More often than not, I find your writings enjoyable to read. But on this occassion, I think you may have erred.

Salam and thank you

Tulang Besi said...



I think on this occassion you have mislead your readers. The common law system is not what you say it is. The current inheritance laws in Malaysia (which were derived from the british laws and subsequently modified) does not distinguish male and female beneficiaries. Everyone is equal and has an equal share. In fact the wife gets the largest share even before the children and male members outside the immediate family are excluded unless specifically provided in the will.
.

The word is derived, not applied.

We have change the British inheritence laws to be what it is.

Anyway, it's not me who said that, it Noah Feldman, a law professor from Harvard who happens to be a jew.

Tulang Besi said...


As I understand it, Shariah laws do make a distinction: the male members of a family tend to benefit more from inheritance than a female member, supposedly on the belief that a male member is better equipped to lead.
.

The same for nafqah. The women has no burden in terms of nafqah as compared to men.

That explains the "difference" of inheritance assignments.

Men gets more inheritence because men are responsible for nafqah.

Women gets less, but women are not burdened with nafqah at all.

Tulang Besi said...


What you have stated may have been a situation where the Brits (when ruling colonial Malaya) started to pander to the wishes of the sultans, religious elders and so on.
.

Actually no. that has been part of British Common Law for a long time since before and it's still is.

Anonymous said...

I do not understand why you and some in PAS and some in UMNO shouted so much about Syariah Law.

Please remember women are also rakyat.

If the rakyat elected PAS like in Kelantan again and again, go ahead and implement your Shariah Law and "rule of Law".

However, if rakyat rejected PAS like in Trengganu (PAS ruled for just one term), that means your "rule of Law" is rejected.

Therefore, implement your "rule of Law" wisely and not force your "rule of Law" down people throat. Otherwise come next election rakyat may reject PAS in Kedah, Selangor and Perak like what happen in Trengganu.

Anonymous said...

Hi MV,

I respect your syariah law and the common law. But, you must have
' common sense'.

malayamuda said...

i think non muslims who drink should also get whipped

Anonymous said...

i am a non muslim and having a disccussion with my wife yesterday regarding this matter, we both generally feel that IT NON OF OUR BUSINESS to interfere on matter pertaning others' religion.

but we do have our opinions though (sad to say).

we both feel very sad that our muslim brothers despite many years of religious study both privately and also in schools, the objectives has failed, WHEN we have to police the muslims just like little children and tell them how to live their lives. just like the government of singapore, telling the singaporeans what to think and how to behave.

all human are blessed with the God given ability to discern good and bad. it is up to them to decide for THEMSELVES and LEARN from mistakes they may have made in their life.

i know cause i learnt the most from my mistakes, not from being right.

just my insignificant 2 cents.

oedipus

Tulang Besi said...

I do not understand why you and some in PAS and some in UMNO shouted so much about Syariah Law.

Please remember women are also rakyat.

If the rakyat elected PAS like in Kelantan again and again, go ahead and implement your Shariah Law and "rule of Law".
.

But, the shariah law in selangor has been enacted long before the Federal Constitution.

for instance:

http://www.jakess.gov.my/jakess/profile.htm

"Sejarah penubuhan mahkamah syariah di negeri Selangor Darul Ehsan pula telah wujud dalam kurun ke-17.

Undang-undang Mencegah Berzina Tahun 1894 (Prevenatation of Adultry Regulation 1894) adalah undang-undang pertama yang dikanunkan di negeri Selangor. Diluluskan oleh Majlis Mesyuarat Negeri Selangor pada 26hb September 1894"
.

It is a law that is enacted LOOONGG before the Federal Constitution

Bob said...

Bang, I think u r spinning. I take the following excerpt from Wiki.

BUT due to women's participation in both world wars, there was a public groundswell in the 1960s. Legislation was readied, tracing through MP Willie Hamilton's select committee report, his Equal Pay For Equal Work Bill, the creation of a Sex Discrimination Board, Lady Sear's draft sex anti-discrimination bill, a government Green Paper of 1973, until 1975 when the first British Sex Discrimination Act, an Equal Pay Act, and an Equal Opportunities Commission came into force. With encouragement from the UK government, the other countries of the EEC soon followed suit with an agreement to ensure that discrimination laws would be phased out across the European Community.

So, women were given equality in stages from the 60's. Given that M'sia followed the Common Law, precedent would allow lawyers to push the courts and local Parliment to change with the tide. Now women are equal to men. Sometimes more equal... :)

Tulang Besi said...


For Non-Muslims, under the amended Distribution Act 1958 (with effect on 30.8.1997) women and girl-children are entitled to inherit equally in the property of their relatives who die without a Will. Notice that this has been changed eons ago when only male heirs can claim inheritance.
.

That's the current law. This article talks about the time when the British came to Malaya/Malaysia.

If we had adopted the entire British Common Law then, then Muslim women would be in a worst shape than they are now.

But, thank god, we didn't.

Tulang Besi said...


BUT due to women's participation in both world wars, there was a public groundswell in the 1960s. Legislation was readied, tracing through MP Willie Hamilton's select committee report, his Equal Pay For Equal Work Bill, the creation of a Sex Discrimination Board, Lady Sear's draft sex anti-discrimination bill, a government Green Paper of 1973, until 1975 when the first British Sex Discrimination Act, an Equal Pay Act, and an Equal Opportunities Commission came into force.
.

But British laws doesn't recoginze introspective.

If the judge choose to apply the "former" laws preventing inheritence to women, they are more than allowed to do so.

No British laws are allowed to be aborogated.

Anak Perelih said...

BTW... if they fight for women equality.. then why they don't want women to receive equal treatment with men under law... if men can be canned.. why can't women????

Anak Perelih said...

In Syariah, men inherit double than women because they have to support and share (nafqah) it with their wive(s) and children, while women can keep it to themselves... Besides.. there is Wasist (will) to to transfer it their daughters specific item of their property...

that's the beauty of Shariah...
We Muslim "shouted so much about Syariah Law. " because as a Muslim, we must follow what is set by Islam... if we don't want to follow what is set by Islam, then there is no purpose to to be a Muslim...

BTW.. PAS is a political party.. people vote for some other things too, and so far they was mislead by UMNO and its propaganda machine...

Wong Ka Wai said...

Dear Tulang Besi,

any law can be created, changed, amended, or abolished by votes of ADUN (state law) or MP (federal law).

Even result from nationwide referendum can decide anything, for example:

country formation, to change country name, merge with another country, splitting states in a country, etc.

Dinosaur extinction due to inability to change according to changing circumstances.

P/S: Minuman herba (resipi lengkap and percuma) bagi mencegah selesema A (H1N1). Sila layari http://bukakedaionline.wordpress.com/2009/08/27/minuman-herba-bagi-mencegah-selesema-a-h1n1/

(dikemaskini dengan gambar dan langkah penyediaan)

michael said...

Dear Tukang Besi,

If you limit your observation only to Malay (Muslim) women and not Malaysian women in general as in your concluding sentence, then I can agree with your viewpoint.

Anonymous said...

Everyone has freedom of religion, but in this world, whatever Islam preach for is should not follow because against freedom of religion but others can stop Muslim from practicing their religous. Syariah law in Malaysia applies to Muslim and i dont know why non-Muslims are busy bodying and against Muslim from practicing their religion. Hypocrites!

Anonymous said...

Frankly all laws are writen by men and are often biased or defective and should be changed if no longer relevant!
Even God's law are written by men and should be reviewed if obviously flawed.

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